Law vs. Ethics: Conflict and Contrast in Laws Affecting the Role of Libraries, Schools, and Other Information Intermediaries

This article discusses the legal landscape of copyright (and contract, i.e., licensing), privacy, and free speech laws in the United States and assesses this landscape on a continuum, contrasting what is legal with what might be thought to be right, formed from a sense of ethical or professional responsibility. Of course, what is right in the mind of one is not so in the mind of another. The purpose of this article is not to suggest what is "right" or "wrong" for all, in terms of professional responsibility or the proper ethical response, as differing positions can be articulated, if not also defended. Rather the point is to demonstrate that the present law contains numerous examples of variation. At times the law perhaps goes too far, offering the potential for infringing use of copyrighted material, imposing excessive privacy restrictions that can impact access rights to government activity or allowing speech that some might view as harmful. At other times the law may extend too far in the other direction, curtailing access and use of copyrighted content, failing to protect privacy, or to allow for robust comment. There may, however, be times when the law though far from perfect comes much closer to the mark, with the law and a sense of responsibility, professional or otherwise, more closely aligned.Further, this discussion brings into focus the intermediary entity as arbiter of access within the information landscape. Of most interest to the readership of this publication is the focus on libraries and educational institutions such as schools, colleges, and universities. Such intermediaries are often in the best position to facilitate access, to educate, and to make fluent its constituents with respect to knowledge: knowledge that is often protected by copyright, knowledge that is the subject of debate, knowledge that necessitates the rights of free inquiry regarding it, and knowledge that may require rights of privacy extended to a record of its access or use. The intermediary may then be in a position to alert the patron, student, et al. to the points of friction between what our laws aspire to be and what a given law is at a given moment or in a given situation.Finally, the examples provided here may also enhance discussion among teachers and students of law, ethics, and policy, presenting the position that the law is neither "all-bad" or "all-good" but offering points of conflict or contrast along such a continuum. In general, it is found that when the law does not go far enough, the opportunity for a learning encounter or so-called teaching moment is created. A response to which the intermediary may find is consistent with its goals of educating or enhancing the information experience. A characteristic of examples where the law does not go far enough is often the conflict of rights created by the law that may impact other rights such as free speech, self- responsibility, or self- restraint for the benefit of others.The first examples below are drawn from the copyright law. Again, the point here is not to say that law should be changed but to suggest that choice exists. Is it not disingenuous to in one breath decry the rights of copyright owners and call for the end of copyright law and in the next breath to hide behind it? In some examples, the law may not go far enough; it allows but does not require and the simple point is that in some circumstances a sense of professional responsibility might require more than the law does. In other examples the copyright law requires too much, challenging traditional norms of interaction with users, patrons, students, subscribers, et al. Finally the law might be just about right, promoting through passive means the goals of knowledge creation incentives, dissemination and access, and reasonable respect for the property of others.Copyright Scenario I: Allowing Infringing Patron ConductThe law does not at times encourage or support the best overall behavior. …